13 Civil Rights Organizations Share Their Red Lines for Canada’s Online Harms Proposal

If you thought Bill C-11 and Bill C-18 were bad, Canada’s forthcoming online harms bill makes them look like minor inconveniences.

To be clear, Bill C-11 is a very dangerous bill that would effectively abolish freedom of expression and that right into a privilege that is granted by the Canadian government. Bill C-18 would effectively eliminate freedom of the press by turning huge powers over to Canadian regulators and pick winners and losers in the journalism sector. They are very dire threats to the internet and how you use the internet every day. Yet, despite the Charter shredding implications of both bills, they pail in comparison to the online harms proposal.

We call this the “online harms proposal” because it hasn’t been tabled as a bill yet. However, in 2021, there was a “consultation” (or as a called it, a fraudsultation) where the Canadian government laid out what was going to be in the bill and asked the Canadian public to agree with it. We know this because documents later on revealed that anyone who disagreed with the position of the government were considered “non-allies” and the government was dissatisfied that so few people agreed with their approach.

Of course, when the consultation was going on and I read the documents, I had a heart attack at what the government was proposing. So, I quickly sent my response which I published publicly. I knew right away that if what the government was proposing became law, Freezenet, along with a huge portion of every other website operating in Canada, would be forced to shut down completely.

As time went on, others had the chance to assess what the government proposed, they joined in on this universal condemnation against the online harms proposal. Internationally, it was condemned by entities such as the Electronic Frontier Foundation (EFF) and Cory Doctorow. Within Canada, experts and organizations from a huge diverse array of backgrounds and experiences also joined in on the condemnation. If anything, my submission didn’t go far enough in condemning the proposal.

There are a huge number of concerns with the proposal and one of them is the 24 hour takedown requirements. If anything is considered “harmful”, then any anonymous user can flag something as “harmful”. The website would then have 24 hours to respond to the complaint. Failure to respond would mean the website faces a $10 million fine. There is no definition for how big the website is that would have to comply with such requirements. Further, what is considered “harmful” is left to the complaining party to decide. There is no concrete definition of what is considered “harmful”.

So, yes, Bill C-18 hurts a websites reach and potentially harms every news based website out there. The online harms proposal kills your website and every other website in the country. You’re simply not surviving a regime like that. It’s worth pointing out that the Canadian government has already been on the record as saying that online creators, in criticizing Bill C-11, are ‘spreading misinformation‘ whenever they criticize Bill C-11. So, you can very easily put two and two together and figure out that such a law could very easily be used as a weapon against critics of the government.

While the threats to domestic website is huge, simply offshoring your operation while residing in Canada will only get you so far. Another widely condemned aspect of the online harms proposal is the use of site blocking. The proposal envisions that all international website must follow with the Canadian governments insane flagging system. Failure to do so would mean that the government can order ISPs to block those websites entirely. At one point, we called it the “Great Firewall of Canada”.

While there are numerous other concerns about the online harms proposal, those two aspects alone should tell you why we consider this proposal the “final solution” to the internet or the Canadian government going nuclear on the internet. It is absolutely fatal to online innovation and, whats more, marginalized groups and organizations have condemned this because, to add insult to injury, this is all being done in their name.

Fortunately, there hasn’t been a whole lot of movement on this file, so we were able to focus on the disasters that were Bill C-11 and Bill C-18. While there still isn’t much in the way of movement on this file that we are aware of, Open Media has joined a dozen other human rights organizations in sharing what they are monitoring in the online harms proposal. They called these best practices and red lines:

Today, 13 civil society organizations released a joint statement addressed to the Minister of Canadian Heritage Pablo Rodriguez, outlining shared concerns and hopes for Canada’s upcoming online safety proposal. The letter urges the government to move cautiously when introducing legislation around illegal online content in Canada, and presents seven dangerous possibilities Canada’s legislation must avoid, as well as five positive recommendations for advancing Canadians’ privacy and freedom of expression.

The signing organizations are deeply concerned that some approaches the government may consider would be inconsistent with freedom of expression and privacy; many had previously criticized the government’s 2021 white paper on harmful content, and do not want to see a return to its widely criticized approach. Key dangerous directions the letter warns the government against include:

  • Proactively monitoring online content;
  • Breaking private encrypted communication;
  • Requiring mandatory takedown windows for most illegal content;
  • Blocking websites without judicial review;
  • Implementing new definitions of targeted harmful content, beyond those already defined by Canadian law.

The signatories also proposed a series of positive recommendations for online safety that would advance internet users’ civil liberties, including mandatory transparency of data and algorithm use by platforms to their Canadian users, requiring user tools for self-managing their online safety and tailoring wider platform accountability measures to their overall pattern of behaviour and reasonable risk assessment.

They strongly urge Minister Rodriguez to carefully consider the vast range of feedback he has received in generating legislation and use the presented principles to shape his legislation moving forward.

The joint statement and open letter itself can be read here (PDF). The letter addressed to the minister reads, in part:

Illegal online content and legal but harmful online content are both real issues, but any legislation that threatens the rights of all people in Canada to express themselves freely is amongst the most sensitive our government can propose. Accordingly, the process of developing such legislation must be transparent, democratic, cautious, and publicly accountable throughout.

In our view, there are certain things the government’s proposal simply must not do because they could cause a serious threat to freedom of expression and privacy. Our respective organizations could not support a proposed regulatory framework that contravenes the following seven proscriptions:

1. Legislation must not require platforms to issue reports to law enforcement or national security agencies, with the possible exception of a) content depicting child exploitation, b) risk of imminent violence.
2. The government must not compel platforms to collect, intercept, or share private communications absent judicial authorization.
3. There must be no requirement that compromises secure encrypted messaging services, including through the mandatory adoption of complex on-device filtering systems.
4. Legislation must not mandate short and inflexible timeframes for illegal content takedown. The three exceptions are: a) when a platform receives notice of content that
poses a risk of imminent harm to persons; b) involves depiction of illegal child exploitation; or c) non-consensual distribution of intimate images.
5. Legislation must not authorize website blocking, except with judicial authorization and opportunity for appeal.
6. Legislation must not mandate proactively monitoring content. Requiring platforms to monitor and vet communications before or as they are posted is state surveillance by proxy and cannot be countenanced in a free and democratic society.
7. Legislation must not create new definitions of harmful content beyond those already established in law and the Criminal Code. Legislation must be clear and directly correspond with the language used in the Criminal Code.

Any policy response must put individuals first, reduce illegal online harms, be consistent with the Charter of Rights and Freedoms, and guard against the possibility that it will have chilling effects on online participation.

The signatories of this letter are as follows:

Arab Canadian Lawyers Association
British Columbia Civil Liberties Association
Canadian Association of University Teachers
Canadian Civil Liberties Association
Canadian Internet Policy and Public Interest Clinic
Canadians United Against Hate
Centre for Free Expression
Ligue des droits et libertés
International Civil Liberties Monitoring Group
Independent Jewish Voices Canada
Internet Society Canada Chapter
National Council of Canadian Muslims

So, a huge diverse array of organizations all with the same goals in mind.

A part of me is worried that this letter might actually remind the minister that, oh yeah, he was going to nuke the whole internet, and get right on that. With the letter and joint statement sent, it doesn’t matter at this point. What’s more, the Canadian government has not exactly been known for listening to anyone who isn’t 100% behind the Canadian government on everything. This was on full display when the many voices against the regulation of user generated content in Bill C-11 went ignored as the amendment that fixed Bill C-11 was rejected. Now, we are in legal limbo as to what happens next.

So, it’s unclear what effect this will have on the debate. Still, it does show that Canada’s civil society is not messing around with this bill. They know full well the risks and are doing everything they can to avert this digital nuclear disaster. At this point, the best hope is that time eventually runs out and this ends up being delayed into the next government. After all, there aren’t a whole lot of answers at this point in time as to how Canadians can effectively fight this outside of letter writing campaigns.

Drew Wilson on Twitter: @icecube85 and Facebook.

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